NEW FEDERAL REQUIREMENTS FOR ISSUING DRIVERS' LICENSES AND IDENTIFICATION CARDS UNDER PUBLIC LAW 109-13

By: James J. Fazzalaro, Principal Analyst

You asked for an explanation of the requirements of a new federal law governing the standards for states to follow when issuing drivers' licenses and identification (ID) cards (Title II of P.L. 109-13). You will receive a subsequent report shortly that will identify some possible implementation issues for Connecticut.

SUMMARY

Congress has passed and the President has signed HR 1268 (P.L. 109-13), an emergency appropriations bill that also includes new requirements for states with respect to issuing drivers' licenses and identification cards. The drivers' license and ID card provisions are nearly identical to a bill passed by the House several weeks ago known as the Real ID Act of 2005.

The new requirements of HR 1268 prohibit any federal agency from accepting a state-issued driver's license or ID card for any official purpose unless it has been issued according to the new requirements. The prohibition begins three years from the legislation's enactment, which seems to put the deadline around mid-May of 2008. The federal Secretary of Homeland Security is responsible for administering the new requirements and is authorized to determine the official purposes for

which the prohibition applies, but the law specifically mentions accessing federal facilities, boarding federally regulated commercial airlines, and entering nuclear power plants.

The law applies most directly to drivers' licenses and non-driver photo ID cards state motor vehicle agencies issue, but the definition it uses for identification cards covers any identification document issued by a state or local government solely for the purpose of identification. Identification cards issued according to the new standards and procedures can be accepted for federal purposes and those not issued to these standards cannot be accepted and must contain a statement on their face stating that they cannot be accepted for federal identification and other official purposes.

The bill establishes (1) minimum items of information and features that must be on licenses and ID cards; (2) documentary evidence that someone must submit to establish their identity and primary residence address; and (3) procedures the state agency must follow to verify the issuance, validity, and completeness of the identification documents with the agency that issued them before it issues the license or ID card. It also prohibits an agency accepting any foreign document other than an official passport.

The new law, in effect, limits those who can receive licenses or ID cards that qualify under its requirements to nine categories of people who are either citizens of the United States or aliens who can document their lawful status in the United States. However, for five of the nine categories, the state may only issue a temporary license or ID card that can be valid only during the period of time of the person's authorized stay in the United States. If there is no definite end to the period of authorized stay, the temporary document can be issued for a period of no more than one year. It can be renewed only if valid evidence is presented that the Secretary of Homeland Security has extended the status of the person under which he qualified for the license or ID card initially.

The law establishes several other responsibilities for agencies in order for their documents to qualify for federal purposes. These include, among other things, (1) employing digital image capture technology of all identify source documents, (2) retaining paper copies of source documents for at least seven years or images for at least 10 years, (3) refusing to issue a license or ID card to someone with a license from another state without confirming that the person is terminating or has terminated the other license, (4) ensuring the “physical security” of locations where licenses and ID cards are produced and the documentary materials and papers from which they are produced, (5) subjecting all those authorized to manufacture or produce licenses and ID cards to “appropriate security clearance requirements,” (6) establishing fraudulent document recognition training programs for employees engaged in issuing licenses and ID cards, and (7) providing electronic access to all the other states to a state motor vehicle database that includes, at a minimum, all the data fields printed on the drivers' licenses and ID cards and driver histories that include violations, suspensions, and license points.

The new law also requires the state to “establish an effective procedure to confirm or verify a renewing applicant's information.” It is not clear whether this can be a separate, less rigorous verification process or license renewals must be subject to the same document submission and verification requirements that apply to new licenses and ID cards.

The new law provides for grants to states to help them implement its requirements, but the amounts authorized for the grants do not appear to be specified. It also provides for possible extensions of time for compliance if they can be justified and implementing regulations

SCOPE OF REAL ID ACT PROVISIONS

The new requirements were adopted as Title II of P.L. 109-13 (HR 1268), an emergency spending authorization for Afghanistan and Iraq military operations and other purposes. The House of Representatives passed the legislation on May 5 and the Senate approved it on May 10. President Bush signed it on May 11. The provisions are very much like, but not identical to, a bill adopted by the House of Representatives several weeks ago known as the Real ID Act of 2005 and the new requirements are still essentially being referred to as the Real ID Act provisions.

The law prohibits any federal agency from accepting a person's state-issued driver's license or identification card for any official purpose unless the state meets the requirements of the new law. The prohibition on federal acceptance of non-complying licenses and identification cards begins three years after the law's enactment. Since it cleared Congress on May 10 and was signed into law by the President on May 11, this essentially means that the prohibition probably begins sometime around mid-May of 2008. The law defines an “official purpose” as including accessing federal facilities, boarding federally regulated commercial aircraft, and entering nuclear power plants, but it could include other things as well. The U. S. Secretary of Homeland Security, who

administers the new provisions and determines a state's compliance status, is authorized to determine any other official purposes to which the prohibition applies.

The law was written so that it does not direct states to comply but the implication of not complying is that its licenses and identification cards will not be accepted for identification purposes by any federal authority anymore. Thus, states will almost certainly have to comply with the standards.

The law applies to drivers' licenses and identification cards, which it defines as an identification document issued by a state or local government solely for the purpose of identification. Thus, while it applies to the non-driver photo identification cards the DMV issues, it also applies to any other state or locally issued identification card. This does not necessarily mean that all state and local identification cards have to comply, but those that do not, will not be valid to for federal identification purposes. However, any non-complying driver's license or identification card must (1) clearly state on its face that it may not be accepted by any federal agency for federal identification or any other official purpose and (2) use a unique design or color indicator to alert federal agency or other law enforcement personnel that it may not be accepted for any such purpose.

Although most of the act refers to issuing a driver's license or identification card in a context that clearly covers new licenses and ID cards, one provision requires a state to have “an effective procedure to confirm or verify a renewing applicant's information.” This appears to be the only direct reference to renewals in the legislation. It is not clear whether this is the same process of document submission and verification through the issuing agencies that must be used for new licenses and ID cards or a separate, but nonetheless sufficiently rigorous and effective process established just for confirming the information holders of existing licenses and ID cards already have on record with the agency. One possible reading of this provision is that the new requirements are applicable to both initial issuance and renewal (at least for the first such renewal) of licenses and ID cards.

MINIMUM DOCUMENT REQUIREMENTS AND ISSUANCE STANDARDS

Minimum Document Requirements

To meet the law's requirements a state must include, at a minimum, the following information and features on any driver's license or ID card it issues:

1. the person's full legal name, date of birth, and gender;

2. the person's driver's license or identification card number;

3. his digital photograph;

4. his primary residence address;

5. his signature;

6. physical security features designed to prevent tampering, counterfeiting, or duplicating of the document for fraudulent purposes; and

7. a common machine-readable technology, with defined minimum data elements.

Minimum Issuance Standards

Before issuing a driver's license or ID card, a state must require, at a minimum, presentation and verification of:

1. A “photo identity document” except that a identity document without a photo is acceptable if it includes both the person's full legal name and date of birth;

2. Documentation showing the person's birth date;

3. Proof of the person's social security account number or verification that he is not eligible for a social security account number; and

4. Documentation showing the person's name and address of primary residence.

Other Special Requirements

The act, in effect, limits issuance of driver's licenses and ID cards to those who can document their lawful status in the United States. Before issuing a license or ID card, a state must require, at a minimum, valid documentary evidence that the person:

1. is a U.S. citizen or national;

2. is an alien lawfully admitted for permanent or temporary residence in the U.S.;

3. has a conditional permanent resident status;

4. has an approved application for asylum or has entered the country in refugee status;

5. has a valid, unexpired nonimmigrant visa or nonimmigrant visa status for entry into the U.S.;

6. has a pending application for asylum;

7. has a pending or approved application for temporary protected status;

8. has approved deferred action status; or

9. has a pending application for adjustment of status to that of an alien lawfully admitted for permanent residence or conditional permanent resident status.

A state may issue only a temporary license or ID card to someone in categories 5 through 9 above. Thus a full term license or identification card may only be issued to a U.S. citizen or national, an alien with permanent or temporary residence status, someone with conditional permanent resident status, or someone with an approved application for asylum or who has entered the U.S. in refugee status. All others can only be issued a temporary document that can only be valid during the period of time of their authorized stay in the United States. In the absence of a definite end to the period of authorized stay, the temporary document can be valid for no longer than one year. The temporary document must clearly indicate that it is temporary and state the expiration date. It can only be renewed if valid documentary evidence is presented showing that the Secretary of Homeland Security has extended the status through which the applicant qualified for the temporary document.

DOCUMENT VERIFICATION AND OTHER REQUIRED STATE PROCEDURES

Document Verification

To meet the act's requirements, a state must (1) before issuing a license or ID card, verify with the issuing agency the issuance, validity, and completeness of each document required to be presented by someone to validly establish his identity as noted above, (2) not accept any foreign document to satisfy the documentary requirements other than an official passport, and (3) no later than September 11, 2005, enter into a memorandum of understanding with the Secretary of Homeland Security to “routinely” use the automated federal system known as Systematic Alien Verification for Entitlements to verify the legal presence status of any non-citizen applying for a driver's license or ID card. (Section 404 of the Illegal Immigration Reform and Immigrant Responsibility Act of 1996 established the federal status verification system.)

Other State Responsibilities Under the Real ID Act Provisions

In addition to all of the above, in order to meet the requirements of the federal act, a state must adopt the following practices when issuing drivers' licenses and ID cards:

1. Employ technology to capture digital images of identity source documents so that the images can be retained in electronic storage in transferable format.

2. Retain paper copies of source documents for at least seven years or images of source documents presented for at least 10 years.

3. Subject each applicant for a license or ID card to mandatory facial image capture.

4. Establish an effective procedure to confirm or verify a renewing applicant's information.

5. Confirm through the Social Security Administration the social security account number a person gives using the full account number or, if the number is already registered to or associated with another person to which the state has issued a license or ID card, the state must resolve the discrepancy and take appropriate action.

6. Refuse to issue a driver's license or ID card to someone with a driver's license issued by another state without confirmation that the person is terminating or has terminated the other license.

7. Ensure the physical security of locations where drivers' licenses and ID cards are produced and the security of documentary materials and papers from which they are produced.

8. Subject all those authorized to manufacture or produce drivers' licenses or ID cards to “appropriate security clearance requirements.”

10. Limit the term of all licenses and ID cards that are not temporary to a maximum of eight years.

11. Provide electronic access to information contained in its motor vehicle database to all other states.

12. Maintain a motor vehicle database that contains, at least, (a) all data fields printed on drivers' licenses and ID cards the state issues and (b) motor vehicle drivers' histories, including violations, suspensions, and license points.

MISCELLANEOUS PROVISIONS

State Certification

The Secretary of Homeland Security must determine whether a state is meeting the requirements based on certifications the state makes to him when and in a manner he prescribes by regulation after consulting with the U.S. transportation secretary.

Extensions

The Secretary of Homeland Security may grant a state a time extension to meet the minimum standards if it provides adequate justification for noncompliance.

Implementation Grants

The act allows the homeland security secretary to make grants to states to assist them in conforming to the minimum standards the act prescribes and authorizes to be appropriated to him for fiscal years 2005 through 2009 “such sums as may be necessary to carry out the act's requirements. Authorized amounts are not specified.

Regulations

The law makes the Secretary of Homeland Security responsible for issuing regulations and standards and awarding implementation grants in consultation with the states and the Secretary of the U.S. Department of Transportation.